2nd Engrossment - 79th Legislature (1995 - 1996) Posted on 12/15/2009 12:00am
1.1 A bill for an act 1.2 relating to natural resources; water; modifying 1.3 wetland protection and management; authorizing 1.4 rulemaking; appropriating money; amending Minnesota 1.5 Statutes 1994, sections 84.035, subdivisions 5 and 6; 1.6 103B.3355; 103E.701, subdivision 6; 103F.612, 1.7 subdivisions 2, 3, 5, 6, and 7; 103G.005, subdivision 1.8 10a, and by adding subdivisions; 103G.127; 103G.222; 1.9 103G.2241; 103G.2242, subdivisions 1, 2, 4, 6, 7, 9, 1.10 and 12; 103G.237, subdivision 4, and by adding a 1.11 subdivision; 103G.2373; and 115.03, by adding a 1.12 subdivision; proposing coding for new law in Minnesota 1.13 Statutes, chapter 103G; repealing Minnesota Statutes 1.14 1994, section 103G.2242, subdivision 13. 1.15 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 1.16 Section 1. Minnesota Statutes 1994, section 84.035, 1.17 subdivision 5, is amended to read: 1.18 Subd. 5. [ACTIVITIES IN PEATLAND SCIENTIFIC AND NATURAL 1.19 AREAS.] Areas designated in subdivision 4 as peatland scientific 1.20 and natural areas are subject to the following conditions: 1.21 (a) Except as provided in paragraph (b), all restrictions 1.22 otherwise applicable to scientific and natural areas designated 1.23 under section 86A.05, subdivision 5, apply to the surface use 1.24 and to any use of the mineral estate which would significantly 1.25 modify or alter the peatland water levels or flows, peatland 1.26 water chemistry, plant or animal species or communities, or 1.27 other natural features of the peatland scientific and natural 1.28 areas, including, but not limited to, the following prohibitions: 1.29 (1) construction of any new public drainage systems after 1.30 the effective date of Laws 1991, chapter 354, or improvement or 2.1 repair to a public drainage system in existence on the effective 2.2 date of Laws 1991, chapter 354, under authority of chapter 103E, 2.3 or any other alteration of surface water or ground water levels 2.4 or flows unless specifically permitted under paragraph (b), 2.5 clause (5) or (6); 2.6 (2) removal of peat, sand, gravel, or other industrial 2.7 minerals; 2.8 (3) exploratory boring or other exploration or removal of 2.9 oil, natural gas, radioactive materials or metallic minerals 2.10 which would significantly modify or alter the peatland water 2.11 levels or flows, peatland water chemistry, plant or animal 2.12 species or communities, or natural features of the peatland 2.13 scientific and natural areas, except in the event of a national 2.14 emergency declared by Congress; 2.15 (4) commercial timber harvesting; 2.16 (5) construction of new corridors of disturbance, of the 2.17 kind defined in subdivision 3, after June 5, 1991; and 2.18 (6) ditching, draining, filling, or any other activities 2.19 which modify or alter the peatland water levels or flows, 2.20 peatland water chemistry, plant or animal species or 2.21 communities, or other natural features of the peatland 2.22 scientific and natural areas. 2.23 (b) The following activities are allowed: 2.24 (1) recreational activities, including hunting, fishing, 2.25 trapping, cross-country skiing, snowshoeing, nature observation, 2.26 or other recreational activities permitted in the management 2.27 plan approved by the commissioner; 2.28 (2) scientific and educational work and research; 2.29 (3) maintenance of corridors of disturbance, including 2.30 survey lines and preparation of winter roads, consistent with 2.31 protection of the peatland ecosystem; 2.32 (4) use of corridors of disturbance unless limited by a 2.33 management plan adopted by the commissioner under subdivision 6; 2.34 (5) improvements to a public drainage system in existence 2.35 on the effective date of Laws 1991, chapter 354, only when it is 2.36 for the protection and maintenance of the ecological integrity 3.1 of the peatland scientific and natural area and when included in 3.2 a management plan adopted by the commissioner under subdivision 3.3 6; 3.4 (6) repairs to a public drainage system in existence on the 3.5 effective date of Laws 1991, chapter 354, which crosses a 3.6 peatland scientific and natural area and is used for the 3.7 purposes of providing a drainage outlet for lands outside of the 3.8 peatland scientific and natural area, provided that there are no 3.9 other feasible and prudent alternative means of providing the 3.10 drainage outlet. The commissioner shall cooperate with the 3.11 ditch authority in the determination of any feasible and prudent 3.12 alternatives. No repairs which would significantly modify or 3.13 alter the peatland water levels or flows, peatland water 3.14 chemistry, plant or animal species or communities, or other 3.15 natural features of the peatland scientific and natural areas 3.16 shall be made unless approved by the commissioner; 3.17 (7) motorized uses
that are engaged in,on corridorsa 3.18 corridor of disturbance, if the corridor existed on or before 3.19 the effective date of Laws 1991, chapter 354January 1, 1992, 3.20 provided that recreational motorized users may occur only when 3.21 the substrate is frozen, or the corridor is snow packed, subject 3.22 to a management plan developed in accordance with subdivision 6; 3.23 and 3.24 (8) control of forest insects, disease, and wildfires, as 3.25 described in a management plan adopted by the commissioner under 3.26 subdivision 6; and 3.27 (9) geological and geophysical surveys which would not 3.28 significantly modify or alter the peatland water levels or 3.29 flows, peatland water chemistry, plant or animal species or 3.30 communities, or other natural features of the peatland 3.31 scientific and natural areas. 3.32 Sec. 2. Minnesota Statutes 1994, section 84.035, 3.33 subdivision 6, is amended to read: 3.34 Subd. 6. [MANAGEMENT PLANS.] The commissioner shall 3.35 develop in consultation with the affected local government unit 3.36 a management plan for each peatland scientific and natural area 4.1 designated under section 84.036 in a manner prescribed by 4.2 section 86A.09. 4.3 The management plan shall address recreational trails. In 4.4 those peatland scientific and natural areas where no corridor of 4.5 disturbance was used as a recreational trail on or before 4.6 January 1, 1992, the plan may permit only one corridor of 4.7 disturbance, in each peatland scientific and natural area, to be 4.8 used as a recreational motorized trail. 4.9 Sec. 3. Minnesota Statutes 1994, section 103B.3355, is 4.10 amended to read: 4.11 103B.3355 [ PUBLIC VALUE CRITERIA FOR WETLANDSWETLAND 4.12 FUNCTIONS FOR DETERMINING PUBLIC VALUES.] 4.13 (a) The board of water and soil resources, in consultation4.14 with the commissioner of natural resources, shall adopt rules4.15 establishing criteria to determineThe public valuevalues of 4.16 wetlands . The rules must consider the public benefit and use of4.17 the wetlands and includemust be determined based upon the 4.18 functions of wetlands for: 4.19 (1) criteria to determine the benefits of wetlands for4.20 water quality, including filtering of pollutants to surface and 4.21 groundwater, utilization of nutrients that would otherwise 4.22 pollute public waters, trapping of sediments, shoreline 4.23 protection, and utilization of the wetland as a recharge area 4.24 for groundwater; 4.25 (2) criteria to determine the benefits of wetlands for4.26 floodwater and stormwater retention, including the potential for 4.27 flooding in the watershed, the value of property subject to 4.28 flooding, and the reduction in potential flooding by the 4.29 wetland; 4.30 (3) criteria to determine the benefits of wetlands for4.31 public recreation and education, including wildlife habitat,4.32 hunting and fishing areas, wildlife breeding areas,wildlife 4.33 viewing areas, aesthetically enhanced areas,and nature areas; 4.34 (4) criteria to determine the benefits of wetlands for4.35 commercial uses, including wild rice and cranberry growing and 4.36 harvesting and aquaculture; and5.1 (5) fish, wildlife, native plant habitats; and 5.2 (6) low-flow augmentation; and 5.3 (7) criteria to determine the benefits of wetlands for5.4 other public uses. 5.5 (b) The board of water and soil resources, in consultation 5.6 with the commissioners of natural resources and agriculture and 5.7 local government units, shall adopt rules establishing: 5.8 (1) scientific methodologies for determining the functions 5.9 of wetlands; and 5.10 (2) criteria for determining the resulting public values of 5.11 wetlands. 5.12 (c) The methodologies and criteria established under this 5.13 section or other methodologies and criteria that include the 5.14 functions in paragraph (a) and are approved by the board, in 5.15 consultation with the commissioners of natural resources and 5.16 agriculture and local government units, must be used to 5.17 determine the functions and resulting public valuevalues of 5.18 wetlands in the state. The functions listed in paragraph (a) 5.19 are not listed in order of priority. 5.20 (d) Public value criteria established or approved by the 5.21 board under this section do not apply in areas subject to local 5.22 comprehensive wetland protection and management plans 5.23 established under section 103G.2243. 5.24 (e) The board of water and soil resources, in consultation 5.25 with the commissionercommissioners of natural resources , shall5.26 also use the criteria in identifyingand agriculture and local 5.27 government units, may identify regions of the state where 5.28 preservation, enhancement, restoration, and establishment of 5.29 wetlands would have high public value. Before the criteria are5.30 adopted,The board, in consultation with the commissioner5.31 commissioners, may identify high priority wetland regions using 5.32 available information relating to the factors listed in 5.33 paragraph (a). The board shall notify local units of government 5.34 with water planning authority of these high priority regions. 5.35 Sec. 4. Minnesota Statutes 1994, section 103E.701, 5.36 subdivision 6, is amended to read: 6.1 Subd. 6. [WETLAND RESTORATION AND MITIGATION.] Repair of a 6.2 drainage system may include the preservation, restoration, or 6.3 enhancement of wetlands; wetland replacement under section 6.4 103G.222; and the realignment of a drainage system to prevent 6.5 drainage of a wetland. 6.6 Sec. 5. Minnesota Statutes 1994, section 103F.612, 6.7 subdivision 2, is amended to read: 6.8 Subd. 2. [APPLICATION.] (a) A wetland owner may apply to 6.9 the county where a wetland is located for designation of a 6.10 wetland preservation area in a high priority wetland area 6.11 identified in a comprehensive local water plan, as defined in 6.12 section 103B.3363, subdivision 3, and located within a high 6.13 priority wetland region designated by the board of water and 6.14 soil resources, if the county chooses to accept wetland 6.15 preservation area applications. The application must be made on 6.16 forms provided by the board. If a wetland is located in more 6.17 than one county, the application must be submitted to the county 6.18 where the majority of the wetland is located. 6.19 (b) The application must contain at least the following 6.20 information and other information the board of soil and water 6.21 resources requires: 6.22 (1) legal description of the area to be approved, which 6.23 must include an upland strip at least 16-1/2 feet in width 6.24 around the perimeter of wetlands within the area and may include 6.25 total upland area of up to four acres for each acre of wetland; 6.26 (2) parcel identification numbers where designated by the 6.27 county auditor; 6.28 (3) name and address of the owner; 6.29 (4) a witnessed signature of the owner covenanting that the 6.30 land will be preserved as a wetland and will only be used in 6.31 accordance with conditions prescribed by the board of water and 6.32 soil resources; and 6.33 (5) a statement that the restrictive covenant will be 6.34 binding on the owner and the owner's successors or assigns, and 6.35 will run with the land. 6.36 (c) The upland strip required in paragraph (b), clause (1), 7.1 must be planted with permanent vegetation other than a noxious 7.2 weed. 7.3 (d) For registered property, the owner shall submit the 7.4 owner's duplicate certificate of title with the application. 7.5 Sec. 6. Minnesota Statutes 1994, section 103F.612, 7.6 subdivision 3, is amended to read: 7.7 Subd. 3. [REVIEW AND NOTICE.] Upon receipt of an 7.8 application, the county shall determine if all material required 7.9 by subdivision 2 has been submitted and, if so, shall determine 7.10 that the application is complete. The term "date of application" 7.11 means the date the application is determined to be complete by 7.12 the county. The county shall send a copy of the application to 7.13 the county assessor, the regional development commission, where7.14 applicable,the board of water and soil resources, and the soil 7.15 and water conservation district where the land is located. The 7.16 soil and water conservation district shall prepare an advisory 7.17 statement of existing and potential preservation problems or 7.18 conflicts and send the statement to the owner of record and to 7.19 the county. The county shall notify the landowner of the 7.20 acceptance or denial of the application within 60 days from the 7.21 date of the application. 7.22 Sec. 7. Minnesota Statutes 1994, section 103F.612, 7.23 subdivision 5, is amended to read: 7.24 Subd. 5. [COMMENCEMENT OF WETLAND PRESERVATION AREA.] The 7.25 wetland is a wetland preservation area commencing 30 days from 7.26 the date the county determinesnotifies the landowner of 7.27 acceptance of the application is completeunder subdivision 3. 7.28 Sec. 8. Minnesota Statutes 1994, section 103F.612, 7.29 subdivision 6, is amended to read: 7.30 Subd. 6. [FEE.] The county may require an application fee ,7.31 not to exceed $50to defray administrative costs of the program. 7.32 Sec. 9. Minnesota Statutes 1994, section 103F.612, 7.33 subdivision 7, is amended to read: 7.34 Subd. 7. [MAPS.] The board of water and soil resources7.35 county shall maintain wetland preservation area maps 7.36 illustrating land covenanted as wetland preservation areas. 8.1 Sec. 10. Minnesota Statutes 1994, section 103G.005, is 8.2 amended by adding a subdivision to read: 8.3 Subd. 2a. [AGRICULTURAL LAND.] "Agricultural land" means: 8.4 land used for horticultural, row, close grown, pasture, and 8.5 hayland crops; growing nursery stocks; animal feedlots; farm 8.6 yards; associated building sites; and public and private 8.7 drainage systems and field roads located on any of the foregoing. 8.8 Sec. 11. Minnesota Statutes 1994, section 103G.005, is 8.9 amended by adding a subdivision to read: 8.10 Subd. 10a. [50 TO 80 PERCENT AREA.] "50 to 80 percent 8.11 area" means a county or watershed with at least 50 but less than 8.12 80 percent of the presettlement wetland acreage intact. 8.13 Sec. 12. Minnesota Statutes 1994, section 103G.005, is 8.14 amended by adding a subdivision to read: 8.15 Subd. 10b. [GREATER THAN 80 PERCENT AREA.] "Greater than 8.16 80 percent area" means a county or watershed where 80 percent or 8.17 more of the presettlement wetland acreage is intact and: 8.18 (1) ten percent or more of the current total land area is 8.19 wetland; or 8.20 (2) 50 percent or more of the current total land area is 8.21 state or federal land. 8.22 Sec. 13. Minnesota Statutes 1994, section 103G.005, is 8.23 amended by adding a subdivision to read: 8.24 Subd. 10c. [HAYLAND.] "Hayland" means an area that was 8.25 mechanically harvested or that was planted with annually seeded 8.26 crops in a crop rotation seeding of grasses or legumes in six of 8.27 the last ten years prior to January 1, 1991. 8.28 Sec. 14. Minnesota Statutes 1994, section 103G.005, is 8.29 amended by adding a subdivision to read: 8.30 Subd. 10d. [LESS THAN 50 PERCENT AREA.] "Less than 50 8.31 percent area" means a county or watershed with less than 50 8.32 percent of the presettlement wetland acreage intact or any 8.33 county or watershed not defined as a "greater than 80 percent 8.34 area" or "50 to 80 percent area." 8.35 Sec. 15. Minnesota Statutes 1994, section 103G.005, 8.36 subdivision 10a, is amended to read: 9.1 Subd. 10a10e. [LOCAL GOVERNMENT UNIT.] "Local government 9.2 unit" means: 9.3 (1) outside of the seven-county metropolitan area, a city 9.4 council or county board of commissioners or their delegate; and9.5 (2) in the seven-county metropolitan area, a city council, 9.6 a town board under section 368.01, or a watershed management 9.7 organization under section 103B.211, or their delegate; and 9.8 (3) on state land, the agency with administrative 9.9 responsibility for the land. 9.10 Sec. 16. Minnesota Statutes 1994, section 103G.005, is 9.11 amended by adding a subdivision to read: 9.12 Subd. 14a. [PASTURE.] "Pasture" means an area that was 9.13 grazed by domesticated livestock or that was planted with 9.14 annually seeded crops in a crop rotation seeding of grasses or 9.15 legumes of the last years prior to January 1, 1991. 9.16 Sec. 17. Minnesota Statutes 1994, section 103G.005, is 9.17 amended by adding a subdivision to read: 9.18 Subd. 14c. [PRESETTLEMENT WETLAND.] "Presettlement wetland" 9.19 means a wetland or public waters wetland that existed in this 9.20 state at the time of statehood in 1858. 9.21 Sec. 18. Minnesota Statutes 1994, section 103G.005, is 9.22 amended by adding a subdivision to read: 9.23 Subd. 14d. [PROJECT.] "Project" means a specific plan, 9.24 contiguous activity, proposal, or design necessary to accomplish 9.25 a goal as defined by the local government unit. As used in this 9.26 chapter, a project may not be split into components or phases 9.27 for the sole purpose of gaining additional exemptions. 9.28 Sec. 19. Minnesota Statutes 1994, section 103G.005, is 9.29 amended by adding a subdivision to read: 9.30 Subd. 15a. [SHORELAND WETLAND PROTECTION ZONE.] "Shoreland 9.31 wetland protection zone" means: 9.32 (1) for local government units that have a shoreland 9.33 management ordinance approved under sections 103F.201 to 9.34 103F.221, the shoreland wetland protection zone is: 9.35 (i) 1,000 feet from the ordinary high water level of a 9.36 waterbasin that is a public water identified in the shoreland 10.1 management ordinance or the shoreland area approved by the 10.2 commissioner as provided in the shoreland management rules 10.3 adopted under section 103F.211, whichever is less; or 10.4 (ii) 300 feet from the ordinary high water level of a 10.5 watercourse identified in the shoreland management ordinance or 10.6 the shoreland area approved by the commissioner as provided in 10.7 the shoreland management rules adopted under section 103F.211, 10.8 whichever is less; and 10.9 (2) for local government units that do not have a shoreland 10.10 management ordinance approved under sections 103F.201 to 10.11 103F.221, the shoreland wetland protection zone is: 10.12 (i) 1,000 feet from the ordinary high water level of a 10.13 waterbasin that is a public water that is at least ten acres in 10.14 size within municipalities and at least 25 acres in size in 10.15 unincorporated areas; or 10.16 (ii) 300 feet from the ordinary high water level of a 10.17 watercourse identified by the public waters inventory under 10.18 section 103G.201. 10.19 Sec. 20. Minnesota Statutes 1994, section 103G.005, is 10.20 amended by adding a subdivision to read: 10.21 Subd. 15b. [SILVICULTURE.] "Silviculture" means the 10.22 management of forest trees. 10.23 Sec. 21. Minnesota Statutes 1994, section 103G.005, is 10.24 amended by adding a subdivision to read: 10.25 Subd. 15c. [UTILITY.] "Utility" means a sanitary sewer, 10.26 storm sewer, potable water distribution, and transmission, 10.27 distribution, or furnishing, at wholesale or retail, of natural 10.28 or manufactured gas, electricity, telephone, or radio service or 10.29 communications. 10.30 Sec. 22. Minnesota Statutes 1994, section 103G.005, is 10.31 amended by adding a subdivision to read: 10.32 Subd. 17b. [WETLAND TYPE.] "Wetland type" means a wetland 10.33 type classified according to Wetlands of the United States, U.S. 10.34 Fish and Wildlife Service Circular 39 (1971 edition), as 10.35 summarized in this subdivision. 10.36 (1) "Type 1 wetlands" are seasonally flooded basins or 11.1 flats in which soil is covered with water or is waterlogged 11.2 during variable seasonal periods but usually is well-drained 11.3 during much of the growing season. Type 1 wetlands are located 11.4 in depressions and in overflow bottomlands along watercourses, 11.5 and in which vegetation varies greatly according to season and 11.6 duration of flooding and includes bottomland hardwoods as well 11.7 as herbaceous growths. 11.8 (2) "Type 2 wetlands" are inland fresh meadows in which 11.9 soil is usually without standing water during most of the 11.10 growing season but is waterlogged within at least a few inches 11.11 of surface. Vegetation includes grasses, sedges, rushes, and 11.12 various broad-leafed plants. Meadows may fill shallow basins, 11.13 sloughs, or farmland sags, or these meadows may border shallow 11.14 marshes on the landward side. 11.15 (3) "Type 3 wetlands" are inland shallow fresh marshes in 11.16 which soil is usually waterlogged early during a growing season 11.17 and often covered with as much as six inches or more of water. 11.18 Vegetation includes grasses, bulrushes, spikerushes, and various 11.19 other marsh plants such as cattails, arrowheads, pickerelweed, 11.20 and smartweeds. These marshes may nearly fill shallow lake 11.21 basins or sloughs, or may border deep marshes on the landward 11.22 side and are also common as seep areas on irrigated lands. 11.23 (4) "Type 4 wetlands" are inland deep fresh marshes in 11.24 which soil is usually covered with six inches to three feet or 11.25 more of water during the growing season. Vegetation includes 11.26 cattails, reeds, bulrushes, spikerushes, and wild rice. In open 11.27 areas, pondweeds, naiads, coontail, water milfoils, waterweeds, 11.28 duckweeds, waterlilies, or spatterdocks may occur. These deep 11.29 marshes may completely fill shallow lake basins, potholes, 11.30 limestone sinks, and sloughs, or they may border open water in 11.31 such depressions. 11.32 (5) "Type 5 wetlands" are inland open fresh water, shallow 11.33 ponds, and reservoirs in which water is usually less than ten 11.34 feet deep and is fringed by a border of emergent vegetation 11.35 similar to open areas of type 4 wetland. 11.36 (6) "Type 6 wetlands" are shrub swamps in which soil is 12.1 usually waterlogged during growing season and is often covered 12.2 with as much as six inches of water. Vegetation includes 12.3 alders, willows, buttonbush, dogwoods, and swamp-privet. This 12.4 type occurs mostly along sluggish streams and occasionally on 12.5 flood plains. 12.6 (7) "Type 7 wetlands" are wooded swamps in which soil is 12.7 waterlogged at least to within a few inches of the surface 12.8 during growing season and is often covered with as much as one 12.9 foot of water. This type occurs mostly along sluggish streams, 12.10 on flood plains, on flat uplands, and in shallow basins. Trees 12.11 include tamarack, arborvitae, black spruce, balsam, red maple, 12.12 and black ash. Northern evergreen swamps usually have a thick 12.13 ground cover of mosses. Deciduous swamps frequently support 12.14 beds of duckweeds and smartweeds. 12.15 (8) "Type 8 wetlands" are bogs in which soil is usually 12.16 waterlogged and supports a spongy covering of mosses. This type 12.17 occurs mostly in shallow basins, on flat uplands, and along 12.18 sluggish streams. Vegetation is woody or herbaceous or both. 12.19 Typical plants are heath shrubs, sphagnum moss, and sedges. In 12.20 the north, leatherleaf, Labrador-tea, cranberries, carex, and 12.21 cottongrass are often present. Scattered, often stunted, black 12.22 spruce and tamarack may occur. 12.23 Sec. 23. Minnesota Statutes 1994, section 103G.127, is 12.24 amended to read: 12.25 103G.127 [PERMIT PROGRAM UNDER SECTION 404 OF THE FEDERAL 12.26 CLEAN WATER ACT.] 12.27 Notwithstanding any other law to the contrary, the 12.28 commissioner, with the concurrence of the board of water and 12.29 soil resources and the commissioner of agriculture, may adopt 12.30 rules establishing a permit program for regulating the discharge 12.31 of dredged and fill material into the waters of the state as 12.32 necessary to obtain approval from the United States 12.33 Environmental Protection Agency to administer the permit program 12.34 under section 404 of the federal Clean Water Act, United States 12.35 Code, title 33, section 1344. The rules may not be more 12.36 restrictive than the program under section 404, or state law, if 13.1 it is more restrictive than the federal program. 13.2 Sec. 24. Minnesota Statutes 1994, section 103G.222, is 13.3 amended to read: 13.4 103G.222 [REPLACEMENT OF WETLANDS.] 13.5 Subdivision 1. [REQUIREMENTS.] (a) After the effective13.6 date of the rules adopted under section 103B.3355 or 103G.2242,13.7 whichever is later,Wetlands must not be drained or filled, 13.8 wholly or partially, unless replaced by restoring or creating 13.9 wetland areas of at least equal public value under a replacement 13.10 plan approved as provided in section 103G.2242, a replacement 13.11 plan under a local governmental unit's comprehensive wetland 13.12 protection and management plan approved by the board under 13.13 section 103G.2242, subdivision 1, paragraph (c)103G.2243, or, 13.14 if a permit to mine is required under section 93.481, under a 13.15 mining reclamation plan approved by the commissioner under the 13.16 permit to mine. Mining reclamation plans shall apply the same 13.17 principles and standards for replacing wetlands by restoration 13.18 or creation of wetland areas that are applicable to mitigation 13.19 plans approved as provided in section 103G.2242. Public value 13.20 must be determined in accordance with section 103B.3355 or a 13.21 comprehensive wetland protection and management plan established 13.22 under section 103G.2243. 13.23 (b) Replacement must be guided by the following principles 13.24 in descending order of priority: 13.25 (1) avoiding the direct or indirect impact of the activity 13.26 that may destroy or diminish the wetland; 13.27 (2) minimizing the impact by limiting the degree or 13.28 magnitude of the wetland activity and its implementation; 13.29 (3) rectifying the impact by repairing, rehabilitating, or 13.30 restoring the affected wetland environment; 13.31 (4) reducing or eliminating the impact over time by 13.32 preservation and maintenance operations during the life of the 13.33 activity; and13.34 (5) compensating for the impact by restoring a wetland; and 13.35 (6) compensating for the impact by replacing or providing 13.36 substitute wetland resources or environments. 14.1 For a project involving the draining or filling of wetlands 14.2 in an amount not exceeding 10,000 square feet more than the 14.3 applicable amount in section 103G.2241, subdivision 9, paragraph 14.4 (a), the local government unit may make an on-site sequencing 14.5 determination without a written alternatives analysis from the 14.6 applicant. 14.7 (c) If a wetland is located in a cultivated field, then 14.8 replacement must be accomplished through restoration only 14.9 without regard to the priority order in paragraph (b), provided 14.10 that a deed restriction is placed on the altered wetland 14.11 prohibiting nonagricultural use for at least ten years. 14.12 (d) Restoration and replacement of wetlands must be 14.13 accomplished in accordance with the ecology of the landscape 14.14 area affected. 14.15 (e) Replacement shall be within the same watershed or 14.16 county as the impacted wetlands, as based on the wetland 14.17 evaluation in section 103G.2242, subdivision 2, except that 14.18 counties or watersheds in whicha greater than 80 percent or14.19 more of the presettlement wetland acreage is intactarea may 14.20 accomplish replacement in counties or watersheds in whichless 14.21 than 50 percent or more of the presettlement wetland acreage has14.22 been filled, drained, or otherwise degradedareas. Wetlands 14.23 impacted by public transportation projects may be replaced 14.24 statewide, provided they are approved by the commissioner under14.25 an established wetland banking system, orexcept that wetlands 14.26 impacted in a less than 50 percent area must be replaced in a 14.27 less than 50 percent area, and wetlands impacted in the seven 14.28 county twin cities metropolitan area by public highways must be 14.29 replaced: 14.30 (1) in the affected county, or, if no restoration 14.31 opportunities exist in the county; 14.32 (2) in another seven county twin cities metropolitan area 14.33 county. 14.34 The board must maintain a public list of restoration 14.35 opportunities within the metropolitan area. Disputes about 14.36 restoration opportunities for wetland replacement in a watershed 15.1 or county may be appealed to the board's committee for dispute 15.2 resolution. Replacement of wetlands may be accomplished under 15.3 the rules for wetland banking as provided for under section 15.4 103G.2242. 15.5 (f) Except as provided in paragraph (g), for a wetland 15.6 located on nonagricultural land, replacement must be in the 15.7 ratio of two acres of replaced wetland for each acre of drained 15.8 or filled wetland. 15.9 (g) For a wetland located on agricultural land or in 15.10 counties or watersheds in whicha greater than 80 percent or15.11 more of the presettlement wetland acreage existsarea, 15.12 replacement must be in the ratio of one acre of replaced wetland 15.13 for each acre of drained or filled wetland. 15.14 (h) Wetlands that are restored or created as a result of an 15.15 approved replacement plan are subject to the provisions of this 15.16 section for any subsequent drainage or filling. 15.17 (i) Except in counties or watersheds wherea greater than 15.18 80 percent or more of the presettlement wetlands are intact15.19 area, only wetlands that have been restored from previously 15.20 drained or filled wetlands, wetlands created by excavation in 15.21 nonwetlands, wetlands created by dikes or dams along public or 15.22 private drainage ditches, or wetlands created by dikes or dams 15.23 associated with the restoration of previously drained or filled 15.24 wetlands may be used in a statewide banking program established 15.25 in rules adopted under section 103G.2242, subdivision 1. 15.26 Modification or conversion of nondegraded naturally occurring 15.27 wetlands from one type to another are not eligible for 15.28 enrollment in a statewide wetlands bank. 15.29 (j) The technical evaluation panel established under 15.30 section 103G.2242, subdivision 2, shall ensure that sufficient 15.31 time has occurred for the wetland to develop wetland 15.32 characteristics of soils, vegetation, and hydrology before 15.33 recommending that the wetland be deposited in the statewide 15.34 wetland bank. If the technical evaluation panel has reason to 15.35 believe that the wetland characteristics may change 15.36 substantially, the panel shall postpone its recommendation until 16.1 the wetland has stabilized. 16.2 (k) This section and sections 103G.223 to 103G.2242, 16.3 103G.2364, and 103G.2365 apply to the state and its departments 16.4 and agencies. 16.5 (l) For projects involving draining or filling of wetlands 16.6 associated with a new public transportation project in a greater 16.7 than 80 percent area, public transportation authorities, other 16.8 than the state department of transportation, may purchase 16.9 credits from the state wetland bank established with proceeds 16.10 from Laws 1994, chapter 643, section 26, subdivision 3, 16.11 paragraph (c). Wetland banking credits may be purchased at the 16.12 least of the following, but in no case shall the purchase price 16.13 be less than $400 per acre: (1) the cost to the state to 16.14 establish the credits; (2) the average estimated market value of 16.15 agricultural land in the township where the road project is 16.16 located, as determined by the commissioner of revenue; or (3) 16.17 the average value of the land in the immediate vicinity of the 16.18 road project as determined by the county assessor. Public 16.19 transportation authorities in a less than 80 percent area may 16.20 purchase credits from the state at the cost to the state to 16.21 establish credits. 16.22 (m) A replacement plan for wetlands is not required for 16.23 individual projects that result in the filling or draining of 16.24 wetlands for the repair, rehabilitation, reconstruction, or 16.25 replacement of a currently serviceable existing state, city, 16.26 county, or town public road necessary, as determined by the 16.27 public transportation authority, to meet state or federal design 16.28 or safety standards or requirements, excluding new roads or 16.29 roads expanded solely for additional traffic capacity lanes. 16.30 This paragraph only applies to authorities for public 16.31 transportation projects that: 16.32 (1) minimize the amount of wetland filling or draining 16.33 associated with the project and consider mitigating important 16.34 site-specific wetland functions on-site; and 16.35 (2) submit annual reports by January 15 to the board and 16.36 members of the public requesting a copy that indicate the 17.1 location, amount, and type of wetlands that have been filled or 17.2 drained during the previous year and a projection of the 17.3 location, amount, and type of wetlands to be filled or drained 17.4 during the upcoming year. 17.5 The technical evaluation panel shall review minimization 17.6 and delineation decisions made by the public transportation 17.7 authority and provide recommendations regarding on-site 17.8 mitigation if requested to do so by the local government unit, a 17.9 contiguous landowner, or a member of the technical evaluation 17.10 panel. 17.11 Except for state public transportation projects, for which 17.12 the state department of transportation is responsible, the board 17.13 must replace the wetlands drained or filled by public 17.14 transportation projects on existing roads in critical rural and 17.15 urban watersheds. 17.16 Public transportation authorities at their discretion may 17.17 deviate from federal and state design standards on existing road 17.18 projects when practical and reasonable to avoid wetland filling 17.19 or draining, provided that public safety is not unreasonably 17.20 compromised. The local road authority and its officers and 17.21 employees are exempt from liability for any tort claim for 17.22 injury to persons or property arising from travel on the highway 17.23 and related to the deviation from the design standards for 17.24 construction or reconstruction under this paragraph. This 17.25 paragraph does not preclude an action for damages arising from 17.26 negligence in construction or maintenance on a highway. 17.27 (n) If a landowner seeks approval of a replacement plan 17.28 after the proposed project has already impacted the wetland, the 17.29 local government unit may require the landowner to replace the 17.30 impacted wetland at a ratio not to exceed twice the replacement 17.31 ratio otherwise required. 17.32 (o) A local government unit may request the board to 17.33 reclassify a county or watershed on the basis of its percentage 17.34 of presettlement wetlands remaining. After receipt of 17.35 satisfactory documentation from the local government, the board 17.36 shall change the classification of a county or watershed. If 18.1 requested by the local government unit, the board must assist in 18.2 developing the documentation. Within 30 days of its action to 18.3 approve a change of wetland classifications, the board shall 18.4 publish a notice of the change in the Environmental Quality 18.5 Board Monitor. 18.6 (p) One hundred citizens who reside within the jurisdiction 18.7 of the local government unit may request the local government 18.8 unit to reclassify a county or watershed on the basis of its 18.9 percentage of presettlement wetlands remaining. In support of 18.10 their petition, the citizens shall provide satisfactory 18.11 documentation to the local government unit. The local 18.12 government unit shall consider the petition and forward the 18.13 request to the board under paragraph (o) or provide a reason why 18.14 the petition is denied. 18.15 Subd. 2. [ROAD CREDIT FUNDING.] At least 50 percent of 18.16 money appropriated for road repair wetland replacement credit 18.17 under this section must be used for wetland restoration in the 18.18 seven county metropolitan area. 18.19 The board shall give priority to restoration projects that 18.20 will: 18.21 (1) intensify land use that leads to more compact 18.22 development or redevelopment; 18.23 (2) encourage public infrastructure investments which 18.24 connect urban neighborhoods and suburban communities, attract 18.25 private sector investment in commercial or residential 18.26 properties adjacent to the public improvement; or 18.27 (3) complement projects receiving funding under section 18.28 473.253. 18.29 Sec. 25. Minnesota Statutes 1994, section 103G.2241, is 18.30 amended to read: 18.31 103G.2241 [EXEMPTIONS.] 18.32 (a) Subject to the conditions in paragraph (b), a18.33 replacement plan for wetlands is not required for:18.34 (1) activities in a wetland that was planted with annually18.35 seeded crops, was in a crop rotation seeding of pasture grasses18.36 or legumes, or was required to be set aside to receive price19.1 support or other payments under United States Code, title 7,19.2 sections 1421 to 1469, in six of the last ten years prior to19.3 January 1, 1991;19.4 (2) activities in a wetland that is or has been enrolled in19.5 the federal conservation reserve program under United States19.6 Code, title 16, section 3831, that:19.7 (i) was planted with annually seeded crops, was in a crop19.8 rotation seeding, or was required to be set aside to receive19.9 price support or payment under United States Code, title 7,19.10 sections 1421 to 1469, in six of the last ten years prior to19.11 being enrolled in the program; and19.12 (ii) has not been restored with assistance from a public or19.13 private wetland restoration program;19.14 (3) activities necessary to repair and maintain existing19.15 public or private drainage systems as long as wetlands that have19.16 been in existence for more than 20 years are not drained;19.17 (4) activities in a wetland that has received a commenced19.18 drainage determination provided for by the federal Food Security19.19 Act of 1985, that was made to the county agricultural19.20 stabilization and conservation service office prior to September19.21 19, 1988, and a ruling and any subsequent appeals or reviews19.22 have determined that drainage of the wetland had been commenced19.23 prior to December 23, 1985;19.24 (5) activities exempted from federal regulation under19.25 United States Code, title 33, section 1344(f);19.26 (6) activities authorized under, and conducted in19.27 accordance with, an applicable general permit issued by the19.28 United States Army Corps of Engineers under section 404 of the19.29 federal Clean Water Act, United States Code, title 33, section19.30 1344, except the nationwide permit in Code of Federal19.31 Regulations, title 33, section 330.5, paragraph (a), clause19.32 (14), limited to when a new road crosses a wetland, and all of19.33 clause (26);19.34 (7) activities in a type 1 wetland on agricultural land, as19.35 defined in United States Fish and Wildlife Circular No. 39 (197119.36 edition) except for bottomland hardwood type 1 wetlands;20.1 (8) activities in a type 2 wetland that is two acres in20.2 size or less located on agricultural land;20.3 (9) activities in a wetland restored for conservation20.4 purposes under a contract or easement providing the landowner20.5 with the right to drain the restored wetland;20.6 (10) activities in a wetland created solely as a result of:20.7 (i) beaver dam construction;20.8 (ii) blockage of culverts through roadways maintained by a20.9 public or private entity;20.10 (iii) actions by public entities that were taken for a20.11 purpose other than creating the wetland; or20.12 (iv) any combination of (i) to (iii);20.13 (11) placement, maintenance, repair, enhancement, or20.14 replacement of utility or utility-type service, including the20.15 transmission, distribution, or furnishing, at wholesale or20.16 retail, of natural or manufactured gas, electricity, telephone,20.17 or radio service or communications if:20.18 (i) the impacts of the proposed project on the hydrologic20.19 and biological characteristics of the wetland have been avoided20.20 and minimized to the extent possible; and20.21 (ii) the proposed project significantly modifies or alters20.22 less than one-half acre of wetlands;20.23 (12) activities associated with routine maintenance of20.24 utility and pipeline rights-of-way, provided the activities do20.25 not result in additional intrusion into the wetland;20.26 (13) alteration of a wetland associated with the operation,20.27 maintenance, or repair of an interstate pipeline;20.28 (14) temporarily crossing or entering a wetland to perform20.29 silvicultural activities, including timber harvest as part of a20.30 forest management activity, so long as the activity limits the20.31 impact on the hydrologic and biologic characteristics of the20.32 wetland; the activities do not result in the construction of20.33 dikes, drainage ditches, tile lines, or buildings; and the20.34 timber harvesting and other silvicultural practices do not20.35 result in the drainage of the wetland or public waters;20.36 (15) permanent access for forest roads across wetlands so21.1 long as the activity limits the impact on the hydrologic and21.2 biologic characteristics of the wetland; the construction21.3 activities do not result in the access becoming a dike, drainage21.4 ditch or tile line; with filling avoided wherever possible; and21.5 there is no drainage of the wetland or public waters;21.6 (16) draining or filling up to one-half acre of wetlands21.7 for the repair, rehabilitation, or replacement of a previously21.8 authorized, currently serviceable existing public road, provided21.9 that minor deviations in the public road's configuration or21.10 filled area, including those due to changes in materials,21.11 construction techniques, or current construction codes or safety21.12 standards, that are necessary to make repairs, rehabilitation,21.13 or replacement are allowed if the wetland draining or filling21.14 resulting from the repair, rehabilitation, or replacement is21.15 minimized;21.16 (17) emergency repair and normal maintenance and repair of21.17 existing public works, provided the activity does not result in21.18 additional intrusion of the public works into the wetland and do21.19 not result in the draining or filling, wholly or partially, of a21.20 wetland;21.21 (18) normal maintenance and minor repair of structures21.22 causing no additional intrusion of an existing structure into21.23 the wetland, and maintenance and repair of private crossings21.24 that do not result in the draining or filling, wholly or21.25 partially, of a wetland;21.26 (19) duck blinds;21.27 (20) aquaculture activities, including pond excavation and21.28 construction and maintenance of associated access roads and21.29 dikes authorized under, and conducted in accordance with, a21.30 permit issued by the United States Army Corps of Engineers under21.31 section 404 of the federal Clean Water Act, United States Code,21.32 title 33, section 1344, but not including construction or21.33 expansion of buildings;21.34 (21) wild rice production activities, including necessary21.35 diking and other activities authorized under a permit issued by21.36 the United States Army Corps of Engineers under section 404 of22.1 the federal Clean Water Act, United States Code, title 33,22.2 section 1344;22.3 (22) normal agricultural practices to control pests or22.4 weeds, defined by rule as either noxious or secondary weeds, in22.5 accordance with applicable requirements under state and federal22.6 law, including established best management practices;22.7 (23) activities in a wetland that is on agricultural land22.8 annually enrolled in the federal Food, Agricultural,22.9 Conservation, and Trade Act of 1990, United States Code, title22.10 16, section 3821, subsection (a), clauses (1) to (3), as22.11 amended, and is subject to sections 1421 to 1424 of the federal22.12 act in effect on January 1, 1991, except that land enrolled in a22.13 federal farm program is eligible for easement participation for22.14 those acres not already compensated under a federal program;22.15 (24) development projects and ditch improvement projects in22.16 the state that have received preliminary or final plat approval,22.17 or infrastructure that has been installed, or having local site22.18 plan approval, conditional use permits, or similar official22.19 approval by a governing body or government agency, within five22.20 years before July 1, 1991. In the seven-county metropolitan22.21 area and in cities of the first and second class, plat approval22.22 must be preliminary as approved by the appropriate governing22.23 body; and22.24 (25) activities that result in the draining or filling of22.25 less than 400 square feet of wetlands.22.26 (b) For the purpose of paragraph (a), clause (16),22.27 "currently serviceable" means usable as is or with some22.28 maintenance, but not so degraded as to essentially require22.29 reconstruction. Paragraph (a), clause (16), authorizes the22.30 repair, rehabilitation, or replacement of public roads destroyed22.31 by storms, floods, fire, or other discrete events, provided the22.32 repair, rehabilitation, or replacement is commenced or under22.33 contract to commence within two years of the occurrence of the22.34 destruction or damage.22.35 (c) A person conducting an activity in a wetland under an22.36 exemption in paragraph (a) shall ensure that:23.1 (1) appropriate erosion control measures are taken to23.2 prevent sedimentation of the water;23.3 (2) the activity does not block fish passage in a23.4 watercourse; and23.5 (3) the activity is conducted in compliance with all other23.6 applicable federal, state, and local requirements, including23.7 best management practices and water resource protection23.8 requirements established under chapter 103H.23.9 Subdivision 1. [AGRICULTURAL ACTIVITIES.] (a) A 23.10 replacement plan for wetlands is not required for: 23.11 (1) activities in a wetland that was planted with annually 23.12 seeded crops, was in a crop rotation seeding of pasture grass or 23.13 legumes, or was required to be set aside to receive price 23.14 support or other payments under United States Code, title 7, 23.15 sections 1421 to 1469, in six of the last ten years prior to 23.16 January 1, 1991; 23.17 (2) activities in a wetland that is or has been enrolled in 23.18 the federal conservation reserve program under United States 23.19 Code, title 16, section 3831, that: 23.20 (i) was planted with annually seeded crops, was in a crop 23.21 rotation seeding, or was required to be set aside to receive 23.22 price support or payment under United States Code, title 7, 23.23 sections 1421 to 1469, in six of the last ten years prior to 23.24 being enrolled in the program; and 23.25 (ii) has not been restored with assistance from a public or 23.26 private wetland restoration program; 23.27 (3) activities in a wetland that has received a commenced 23.28 drainage determination provided for by the federal Food Security 23.29 Act of 1985, that was made to the county agricultural 23.30 stabilization and conservation service office prior to September 23.31 19, 1988, and a ruling and any subsequent appeals or reviews 23.32 have determined that drainage of the wetland had been commenced 23.33 prior to December 23, 1985; 23.34 (4) activities in a type 1 wetland on agricultural land, 23.35 except for bottomland hardwood type 1 wetlands, and activities 23.36 in a type 2 or type 6 wetland that is less than two acres in 24.1 size and located on agricultural land; 24.2 (5) aquaculture activities including pond excavation and 24.3 construction and maintenance of associated access roads and 24.4 dikes authorized under, and conducted in accordance with, a 24.5 permit issued by the United States Army Corps of Engineers under 24.6 section 404 of the federal Clean Water Act, United States Code, 24.7 title 33, section 1344, but not including construction or 24.8 expansion of buildings; 24.9 (6) wild rice production activities, including necessary 24.10 diking and other activities authorized under a permit issued by 24.11 the United States Army Corps of Engineers under section 404 of 24.12 the federal Clean Water Act, United States Code, title 33, 24.13 section 1344; 24.14 (7) normal agricultural practices to control noxious or 24.15 secondary weeds as defined by rule of the commissioner of 24.16 agriculture, in accordance with applicable requirements under 24.17 state and federal law, including established best management 24.18 practices; and 24.19 (8) agricultural activities in a wetland that is on 24.20 agricultural land annually enrolled in the federal Food, 24.21 Agricultural, Conservation, and Trade Act of 1990, United States 24.22 Code, title 16, section 3821, subsection (a), clauses (1) to 24.23 (3), as amended, and is subject to sections 1421 to 1424 of the 24.24 federal act in effect on January 1, 1991, except that land 24.25 enrolled in a federal farm program is eligible for easement 24.26 participation for those acres not already compensated under a 24.27 federal program. 24.28 (b) The exemption under paragraph (a), clause (4), may be 24.29 expanded to additional acreage, including types 1, 2, and 6 24.30 wetlands that are part of a larger wetland system, when the 24.31 additional acreage is part of a conservation plan approved by 24.32 the local soil and water conservation district, the additional 24.33 draining or filling is necessary for efficient operation of the 24.34 farm, the hydrology of the larger wetland system is not 24.35 adversely affected, and wetlands other than types 1, 2, and 6 24.36 are not drained or filled. 25.1 Subd. 2. [DRAINAGE.] (a) For the purposes of this 25.2 subdivision, "public drainage system" means a drainage system as 25.3 defined in section 103E.005, subdivision 12, and any ditch or 25.4 tile lawfully connected to the drainage system. 25.5 (b) A replacement plan is not required for draining of type 25.6 1 wetlands, or up to five acres of type 2 or 6 wetlands, in an 25.7 unincorporated area on land that has been assessed drainage 25.8 benefits for a public drainage system, provided that: 25.9 (1) during the 20-year period that ended January 1, 1992: 25.10 (i) there was an expenditure made from the drainage system 25.11 account for the public drainage system; 25.12 (ii) the public drainage system was repaired or maintained 25.13 as approved by the drainage authority; or 25.14 (iii) no repair or maintenance of the public drainage 25.15 system was required under section 103E.705, subdivision 1, as 25.16 determined by the public drainage authority; and 25.17 (2) the wetlands are not drained for conversion to: 25.18 (i) platted lots; 25.19 (ii) planned unit, commercial, or industrial developments; 25.20 or 25.21 (iii) any development with more than one residential unit 25.22 per 40 acres. 25.23 If wetlands drained under this paragraph are converted to uses 25.24 prohibited under clause (2) during the ten-year period following 25.25 drainage, the wetlands must be replaced under section 103G.222. 25.26 (c) A replacement plan is not required for draining or 25.27 filling of wetlands, except for draining types 3, 4, and 5 25.28 wetlands that have been in existence for more than 25 years, 25.29 resulting from maintenance and repair of existing public 25.30 drainage systems. 25.31 (d) A replacement plan is not required for draining or 25.32 filling of wetlands, except for draining wetlands that have been 25.33 in existence for more than 25 years, resulting from maintenance 25.34 and repair of existing drainage systems other than public 25.35 drainage systems. 25.36 (e) A replacement plan is not required for draining or 26.1 filling of wetlands resulting from activities conducted as part 26.2 of a public drainage system improvement project that received 26.3 final approval from the drainage authority before July 1, 1991, 26.4 and after July 1, 1986, if: 26.5 (1) the approval remains valid; 26.6 (2) the project remains active; and 26.7 (3) no additional drainage will occur beyond that 26.8 originally approved. 26.9 (f) The public drainage authority may, as part of the 26.10 repair, install control structures, realign the ditch, construct 26.11 dikes along the ditch, or make other modifications as necessary 26.12 to prevent drainage of the wetland. 26.13 (g) Wetlands of all types that would be drained as a part 26.14 of a public drainage repair project are eligible for the 26.15 permanent wetlands preserve, under section 103F.516. The board 26.16 shall give priority to acquisition of easements on types 3, 4, 26.17 and 5 wetlands that have been in existence for more than 25 26.18 years on public drainage systems and other wetlands that have 26.19 the greatest risk of drainage from a public drainage repair 26.20 project. 26.21 Subd. 3. [FEDERAL APPROVALS.] A replacement plan for 26.22 wetlands is not required for: 26.23 (1) activities exempted from federal regulation under 26.24 United States Code, title 33, section 1344(f), as in effect on 26.25 January 1, 1991; 26.26 (2) activities authorized under, and conducted in 26.27 accordance with, an applicable general permit issued by the 26.28 United States Army Corps of Engineers under section 404 of the 26.29 federal Clean Water Act, United States Code, title 33, section 26.30 1344, except the nationwide permit in Code of Federal 26.31 Regulations, title 33, section 330.5, paragraph (a), clauses 26.32 (14), limited to when a new road crosses a wetland, and (26), as 26.33 in effect on January 1, 1991. 26.34 Subd. 4. [WETLAND RESTORATION.] A replacement plan for 26.35 wetlands is not required for activities in a wetland restored 26.36 for conservation purposes under a contract or easement providing 27.1 the landowner with the right to drain the restored wetland. 27.2 Subd. 5. [INCIDENTAL WETLANDS.] A replacement plan for 27.3 wetlands is not required for activities in a wetland created 27.4 solely as a result of: 27.5 (1) beaver dam construction; 27.6 (2) blockage of culverts through roadways maintained by a 27.7 public or private entity; 27.8 (3) actions by public or private entities that were taken 27.9 for a purpose other than creating the wetland; or 27.10 (4) any combination of clauses (1) to (3). 27.11 Subd. 6. [UTILITIES; PUBLIC WORKS.] A replacement plan for 27.12 wetlands is not required for: 27.13 (1) placement, maintenance, repair, enhancement, or 27.14 replacement of utility or utility-type service if: 27.15 (i) the impacts of the proposed project on the hydrologic 27.16 and biological characteristics of the wetland have been avoided 27.17 and minimized to the extent possible; and 27.18 (ii) the proposed project significantly modifies or alters 27.19 less than one-half acre of wetlands; 27.20 (2) activities associated with routine maintenance of 27.21 utility and pipeline rights-of-way, provided the activities do 27.22 not result in additional intrusion into the wetland; 27.23 (3) alteration of a wetland associated with the operation, 27.24 maintenance, or repair of an interstate pipeline within all 27.25 existing or acquired interstate pipeline rights-of-way; 27.26 (4) emergency repair and normal maintenance and repair of 27.27 existing public works, provided the activity does not result in 27.28 additional intrusion of the public works into the wetland and 27.29 does not result in the draining or filling, wholly or partially, 27.30 of a wetland; 27.31 (5) normal maintenance and minor repair of structures 27.32 causing no additional intrusion of an existing structure into 27.33 the wetland, and maintenance and repair of private crossings 27.34 that do not result in the draining or filling, wholly or 27.35 partially, of a wetland; or 27.36 (6) repair and updating of existing individual sewage 28.1 treatment systems as necessary to comply with local, state, and 28.2 federal regulations. 28.3 Subd. 7. [FORESTRY.] A replacement plan for wetlands is 28.4 not required for: 28.5 (1) temporarily crossing or entering a wetland to perform 28.6 silvicultural activities, including timber harvest as part of a 28.7 forest management activity, so long as the activity limits the 28.8 impact on the hydrologic and biologic characteristics of the 28.9 wetland; the activities do not result in the construction of 28.10 dikes, drainage ditches, tile lines, or buildings; and the 28.11 timber harvesting and other silvicultural practices do not 28.12 result in the drainage of the wetland or public waters; or 28.13 (2) permanent access for forest roads across wetlands so 28.14 long as the activity limits the impact on the hydrologic and 28.15 biologic characteristics of the wetland; the construction 28.16 activities do not result in the access becoming a dike, drainage 28.17 ditch, or tile line; filling is avoided wherever possible; and 28.18 there is no drainage of the wetland or public waters. 28.19 Subd. 8. [APPROVED DEVELOPMENT.] A replacement plan for 28.20 wetlands is not required for development projects and ditch 28.21 improvement projects in the state that have received preliminary 28.22 or final plat approval or have infrastructure that has been 28.23 installed or has local site plan approval, conditional use 28.24 permits, or similar official approval by a governing body or 28.25 government agency, within five years before July 1, 1991. As 28.26 used in this subdivision, "infrastructure" means public water 28.27 facilities, storm water and sanitary sewer piping, outfalls, 28.28 inlets, culverts, bridges, and any other work defined 28.29 specifically by a local government unit as constituting a 28.30 capital improvement to a parcel within the context of an 28.31 approved development plan. 28.32 Subd. 9. [DE MINIMIS.] (a) Except as provided in 28.33 paragraphs (b), (c), and (d), a replacement plan for wetlands is 28.34 not required for draining or filling the following amounts of 28.35 wetlands as part of a project, regardless of the total amount of 28.36 wetlands filled as part of a project: 29.1 (1) 10,000 square feet of type 1, type 2, type 6, or type 7 29.2 wetland, excluding white cedar and tamarack wetlands, outside of 29.3 the shoreland wetland protection zone in a greater than 80 29.4 percent area; 29.5 (2) 5,000 square feet of type 1, type 2, type 6, or type 7 29.6 wetland, excluding white cedar and tamarack wetlands, outside of 29.7 the shoreland wetland protection zone in a 50 to 80 percent 29.8 area; 29.9 (3) 2,000 square feet of type 1, type 2, or type 6 wetland, 29.10 outside of the shoreland wetland protection zone in a less than 29.11 50 percent area; 29.12 (4) 400 square feet of wetland types not listed in clauses 29.13 (1) to (3) outside of shoreland wetland protection zones in all 29.14 counties; or 29.15 (5) 400 square feet of type 1, type 2, type 3, type 4, type 29.16 5, type 6, type 7, or type 8 wetland, in the shoreland wetland 29.17 protection zone, except that in a greater than 80 percent area, 29.18 the local government unit may increase the de minimis amount up 29.19 to 1,000 square feet in the shoreland protection zone in areas 29.20 beyond the building setback if the wetland is isolated and is 29.21 determined to have no direct surficial connection to the public 29.22 water. To the extent that a local shoreland management 29.23 ordinance is more restrictive than this provision, the local 29.24 shoreland ordinance applies. 29.25 (b) The amounts listed in paragraph (a), clauses (1) to 29.26 (5), may not be combined on a project. 29.27 (c) This exemption no longer applies to a landowner's 29.28 portion of a wetland when the cumulative area drained or filled 29.29 of the landowner's portion since January 1, 1992, is the 29.30 greatest of: 29.31 (1) the applicable area listed in paragraph (a), if the 29.32 landowner owns the entire wetland; 29.33 (2) five percent of the landowner's portion of the wetland; 29.34 or 29.35 (3) 400 square feet. 29.36 (d) Persons proposing to conduct an activity under this 30.1 subdivision shall contact the board at a toll-free number to be 30.2 provided for information on minimizing wetland impacts. Failure 30.3 to call by the person does not constitute a violation of this 30.4 subdivision. 30.5 (e) This exemption may not be combined with another 30.6 exemption in this section on a project. 30.7 Subd. 10. [WILDLIFE HABITAT.] A replacement plan for 30.8 wetlands is not required for: 30.9 (1) deposition of spoil resulting from excavation within a 30.10 wetland for a wildlife habitat improvement project, if: 30.11 (i) the area of deposition does not exceed five percent of 30.12 the wetland area or one-half acre, whichever is less, and the 30.13 spoil is stabilized and permanently seeded to prevent erosion; 30.14 (ii) the project does not have an adverse impact on any 30.15 species designated as endangered or threatened under state or 30.16 federal law; and 30.17 (iii) the project will provide wildlife habitat improvement 30.18 as certified by the soil and water conservation district; or 30.19 (2) duck blinds. 30.20 Subd. 11. [EXEMPTION CONDITIONS.] (a) A person conducting 30.21 an activity in a wetland under an exemption in subdivisions 1 to 30.22 10 shall ensure that: 30.23 (1) appropriate erosion control measures are taken to 30.24 prevent sedimentation of the water; 30.25 (2) the activity does not block fish passage in a 30.26 watercourse; and 30.27 (3) the activity is conducted in compliance with all other 30.28 applicable federal, state, and local requirements, including 30.29 best management practices and water resource protection 30.30 requirements established under chapter 103H. 30.31 (b) An activity is exempt if it qualifies for any one of 30.32 the exemptions, even though it may be indicated as not exempt 30.33 under another exemption. 30.34 (c) Persons proposing to conduct an exempt activity are 30.35 encouraged to contact the local government unit or the local 30.36 government unit's designee for advice on minimizing wetland 31.1 impacts. 31.2 Sec. 26. Minnesota Statutes 1994, section 103G.2242, 31.3 subdivision 1, is amended to read: 31.4 Subdivision 1. [RULES.] (a) By July 1, 1993,The board, in 31.5 consultation with the commissioner, shall adopt rules governing 31.6 the approval of wetland value replacement plans under this 31.7 section. These rules must address the criteria, procedure, 31.8 timing, and location of acceptable replacement of wetland 31.9 values; may address the state establishment and administration 31.10 of a wetland banking program for public and private projects, 31.11 which may include provisions allowing monetary payment to the 31.12 wetland banking program for alteration of wetlands on 31.13 agricultural land; the methodology to be used in identifying and31.14 evaluating wetland functions;the administrative, monitoring, 31.15 and enforcement procedures to be used; and a procedure for the 31.16 review and appeal of decisions under this section. In the case 31.17 of peatlands, the replacement plan rules must consider the 31.18 impact on carbon balance described in the report required by 31.19 Laws 1990, chapter 587, and include the planting of trees or 31.20 shrubs. 31.21 (b) After the adoption of the rules, a replacement plan 31.22 must be approved by a resolution of the governing body of the 31.23 local government unit, consistent with the provisions of the 31.24 rules or a comprehensive wetland protection and management plan 31.25 approved under section 103G.2243. 31.26 (c) The board may approve as an alternative to the rules31.27 adopted under this subdivision a comprehensive wetland31.28 protection and management plan developed by a local government31.29 unit, provided that the plan:31.30 (1) incorporates sections 103A.201, subdivision 2, and31.31 103G.222;31.32 (2) is adopted as part of an approved local water plan31.33 under sections 103B.231 and 103B.311; and31.34 (3) is adopted as part of the local government's official31.35 controls.31.36 (d) If the local government unit fails to apply the rules, 32.1 or fails to implement a local program under paragraph32.2 (c)comprehensive wetland protection and management plan 32.3 established under section 103G.2243, the government unit is 32.4 subject to penalty as determined by the board. 32.5 Sec. 27. Minnesota Statutes 1994, section 103G.2242, 32.6 subdivision 2, is amended to read: 32.7 Subd. 2. [EVALUATION.] Questions concerning the public 32.8 value, location, size, or type of a wetland shall be submitted 32.9 to and determined by a technical evaluation panel after an 32.10 on-site inspection. The technical evaluation panel shall be 32.11 composed of a technical professional employee of the board, a 32.12 technical professional employee of the local soil and water 32.13 conservation district or districts, and a technical professional 32.14 with expertise in water resources management appointed by the 32.15 local government unit. The panel shall use the "Federal Manual32.16 for Identifying and Delineating Jurisdictional Wetlands"32.17 (January 1989)"United States Army Corps of Engineers Wetland 32.18 Delineation Manual" (January 1987), "Wetlands of the United 32.19 States" (United States Fish and Wildlife Service Circular 39, 32.20 1971 edition), and "Classification of Wetlands and Deepwater 32.21 Habitats of the United States" (1979 edition). The panel shall 32.22 provide the wetland determination to the local government unit 32.23 that must approve a replacement plan under this section, and may 32.24 recommend approval or denial of the plan. The authority must 32.25 consider and include the decision of the technical evaluation 32.26 panel in their approval or denial of a plan. 32.27 Sec. 28. Minnesota Statutes 1994, section 103G.2242, 32.28 subdivision 4, is amended to read: 32.29 Subd. 4. [DECISION.] Upon receiving and considering all 32.30 required data, the local government unit approving areviewing 32.31 replacement plan applications, banking plan applications, and 32.32 exemption or no-loss determination requests must act on all 32.33 replacement plan applications for plan approval within 60 days, 32.34 banking plan applications, and exemption or no-loss 32.35 determination requests in compliance with section 15.99. 32.36 Sec. 29. Minnesota Statutes 1994, section 103G.2242, 33.1 subdivision 6, is amended to read: 33.2 Subd. 6. [NOTICE OF APPLICATION.] (a) Except as provided 33.3 in paragraph (b), within ten days of receiving an application 33.4 for approval of a replacement plan under this section , a copy of33.5 the application must be submitted to the board for publication33.6 in the Environmental Quality Board Monitor and separatecopies 33.7 of the complete application must be mailed to individual members33.8 of the public who request a copy, the board of supervisors of33.9 the soil and water conservation district,the members of the 33.10 technical evaluation panel, the managers of the watershed 33.11 district if one exists, the board of county commissioners,and 33.12 the commissioner of agriculture, and the mayors of the cities33.13 within the area watershed. At the same time, the local33.14 government unit must give general notice to the public in a33.15 general circulation newspaper within the area affected.natural 33.16 resources. Individual members of the public who request a copy 33.17 shall be provided information to identify the applicant and the 33.18 location and scope of the project. 33.19 (b) Within ten days of receiving an application for 33.20 approval of a replacement plan under this section for an 33.21 activity affecting less than 10,000 square feet of wetland, a 33.22 summary of the application must be submitted for publication in33.23 the Environmental Quality Board Monitor and separate copies33.24 mailed to the members of the technical evaluation panel, 33.25 individual members of the public who request a copy, and the 33.26 managers of the watershed district, if applicable. At the same33.27 time, the local government unit must give general notice to the33.28 public in a general circulation newspaper within the area33.29 affectedcommissioner of natural resources. 33.30 (c) For the purpose of this subdivision, "application" 33.31 includes a revised application for replacement plan approval and 33.32 an application for a revision to an approved replacement plan if: 33.33 (1) the wetland area to be drained or filled under the 33.34 revised replacement plan is at least ten percent larger than the 33.35 area to be drained or filled under the original replacement 33.36 plan; or 34.1 (2) the wetland area to be drained or filled under the 34.2 revised replacement is located more than 500 feet from the area 34.3 to be drained or filled under the original replacement plan. 34.4 Sec. 30. Minnesota Statutes 1994, section 103G.2242, 34.5 subdivision 7, is amended to read: 34.6 Subd. 7. [NOTICE OF DECISION.] (a) Except as provided in34.7 paragraph (b), at least 30Within ten days prior to the34.8 effective dateof the approval or denial of a replacement plan 34.9 under this section, a copysummary of the approval or denial 34.10 must be submitted for publication in the Environmental Quality34.11 Board Monitor and separate copiesmailed to members of the 34.12 technical evaluation panel, the applicant, the board,individual 34.13 members of the public who request a copy, the board of34.14 supervisors of the soil and water conservation district,the 34.15 managers of the watershed district, the board of county34.16 commissioners,if one exists, and the commissioner of 34.17 agriculture, and the mayors of the cities within the area34.18 watershednatural resources. 34.19 (b) Within ten days of the decision approving or denying a34.20 replacement plan under this section for an activity affecting34.21 less than 10,000 square feet of wetland, a summary of the34.22 approval or denial must be submitted for publication in the34.23 Environmental Quality Board Monitor and separate copies mailed34.24 to the applicant, individual members of the public who request a34.25 copy, the members of the technical evaluation panel, and the34.26 managers of the watershed district, if applicable. At the same34.27 time, the local government unit must give general notice to the34.28 public in a general circulation newspaper within the area34.29 affected.34.30 Sec. 31. Minnesota Statutes 1994, section 103G.2242, 34.31 subdivision 9, is amended to read: 34.32 Subd. 9. [APPEAL.] Appeal of thea replacement plan, 34.33 exemption, or no-loss decision may be obtained by mailing a 34.34 notice of appealpetition and payment of a filing fee of $200, 34.35 which shall be retained by the board to defray administrative 34.36 costs, to the board within 3015 days after the postmarked date 35.1 of the mailing specified in subdivision 7. If appeal is not 35.2 sought within 3015 days, the decision becomes final. The local 35.3 government unit may require the petitioner to post a letter of 35.4 credit, cashier's check, or cash in an amount not to exceed 35.5 $500. If the petition for hearing is accepted, the amount 35.6 posted must be returned to the petitioner. Appeal may be made 35.7 by the wetland owner, by any of those to whom notice is required 35.8 to be mailed under subdivision 7, or by 100 residents of the 35.9 county in which a majority of the wetland is located. Within 30 35.10 days after receiving a petition, the board shall decide whether 35.11 to grant the petition and hear the appeal. The board shall 35.12 grant the petition unless the board finds that the appeal is 35.13 meritless, trivial, or brought solely for the purposes of delay; 35.14 that the petitioner has not exhausted all local administrative 35.15 remedies; or that the petitioner has not posted a letter of 35.16 credit, cashier's check, or cash if required by the local 35.17 government unit. In determining whether to grant the appeal, 35.18 the board shall also consider the size of the wetland, other 35.19 factors in controversy, any patterns of similar acts by the 35.20 local government unit or petitioner, and the consequences of the 35.21 delay resulting from the appeal. All appeals must be heard by 35.22 the committee for dispute resolution of the board, and a 35.23 decision made within 60 days of the appeal. The decision must 35.24 be served by mail on the parties to the appeal, and is not 35.25 subject to the provisions of chapter 14. TheA decision whether 35.26 to grant a petition for appeal and a decision on the merits of 35.27 an appeal must be considered the decision of an agency in a 35.28 contested case for purposes of judicial review under sections 35.29 14.63 to 14.69. 35.30 Sec. 32. Minnesota Statutes 1994, section 103G.2242, 35.31 subdivision 12, is amended to read: 35.32 Subd. 12. [REPLACEMENT CREDITS.] (a) No public or private 35.33 wetland restoration, enhancement, or construction may be allowed 35.34 for replacement unless specifically designated for replacement 35.35 and paid for by the individual or organization performing the 35.36 wetland restoration, enhancement, or construction, and is 36.1 completed prior to any draining or filling of the wetland. 36.2 This subdivision(b) Paragraph (a) does not apply to a 36.3 wetland whose owner has paid back with interest the individual 36.4 or organization restoring, enhancing, or constructing the 36.5 wetland. 36.6 (c) Notwithstanding section 103G.222, subdivision 1, 36.7 paragraph (i), the following actions are eligible for 36.8 replacement credit as determined by the local government unit, 36.9 including enrollment in a statewide wetlands bank: 36.10 (1) Reestablishment of permanent vegetative cover on a 36.11 wetland that was planted with annually seeded crops, was in a 36.12 crop rotation seeding of pasture grasses or legumes, or was 36.13 required to be set aside to receive price supports or other 36.14 payments under United States Code, title 7, sections 1421 to 36.15 1469, in six of the last ten years prior to January 1, 1991. 36.16 Replacement credit may not exceed 50 percent of the total 36.17 wetland area vegetatively restored; 36.18 (2) Buffer areas of permanent vegetative cover established 36.19 on upland adjacent to replacement wetlands, provided that the 36.20 upland buffer must be established at the time of wetland 36.21 replacement and replacement credit for the buffer may not exceed 36.22 75 percent of the replacement wetland area and may only be used 36.23 for replacement above a 1:1 ratio; 36.24 (3) Wetlands restored for conservation purposes under 36.25 terminated easements or contracts, provided that Up to 75 36.26 percent of the restored wetland area is eligible for replacement 36.27 credit and adjacent upland buffer areas reestablished to 36.28 permanent vegetative cover are eligible for replacement credit 36.29 above a 1:1 ratio in an amount not to exceed 25 percent of the 36.30 restored wetland area; and 36.31 (4) Water quality treatment ponds constructed to pretreat 36.32 storm water runoff prior to discharge to wetlands, public 36.33 waters, or other water bodies, provided that the water quality 36.34 treatment ponds must be associated with an ongoing or proposed 36.35 project that will impact a wetland and replacement credit for 36.36 the treatment ponds may not exceed 75 percent of the treatment 37.1 pond area and may only be used for replacement above a 1:1 ratio. 37.2 Sec. 33. [103G.2243] [LOCAL COMPREHENSIVE WETLAND 37.3 PROTECTION AND MANAGEMENT PLANS.] 37.4 Subdivision 1. [GENERAL REQUIREMENTS; NOTICE AND 37.5 PARTICIPATION.] (a) As an alternative to the rules adopted under 37.6 section 103G.2242, subdivision 1, and the public value criteria 37.7 established or approved under section 103B.3355, a comprehensive 37.8 wetland protection and management plan may be developed by a 37.9 local government unit, or one or more local government units 37.10 operating under a joint powers agreement, provided that: 37.11 (1) a notice is made at the beginning of the planning 37.12 process to the board, the commissioner of natural resources, the 37.13 pollution control agency, local government units, and local 37.14 citizens to actively participate in the development of the plan; 37.15 and 37.16 (2) the plan is implemented by ordinance as part of the 37.17 local government's official controls under chapter 394, for a 37.18 county; chapter 462, for a city; chapter 366, for a town; and by 37.19 rules adopted under chapter 103D, for a watershed district; and 37.20 chapter 103B, for a watershed management organization. 37.21 (b) An organization that is invited to participate in the 37.22 development of the local plan, but declines to do so and fails 37.23 to participate or to provide written comments during the local 37.24 review process, waives the right during board review to submit 37.25 comments, except comments concerning consistency of the plan 37.26 with laws and rules administered by that agency. In determining 37.27 the merit of an agency comment, the board shall consider the 37.28 involvement of the agency in the development of the local plan. 37.29 Subd. 2. [PLAN CONTENTS.] A comprehensive wetland 37.30 protection and management plan may: 37.31 (1) provide for classification of wetlands in the plan area 37.32 based on: 37.33 (i) an inventory of wetlands in the plan area; 37.34 (ii) an assessment of the wetland functions listed in 37.35 section 103B.3355, using a methodology chosen by the technical 37.36 evaluation panel from one of the methodologies established or 38.1 approved by the board under that section; and 38.2 (iii) the resulting public values; 38.3 (2) vary application of the sequencing standards in section 38.4 103G.222, subdivision 1, paragraph (b), for projects based on 38.5 the classification and criteria set forth in the plan; 38.6 (3) vary the replacement standards of section 103G.222, 38.7 subdivision 1, paragraphs (f) and (g), based on the 38.8 classification and criteria set forth in the plan, for specific 38.9 wetland impacts provided there is no net loss of public values 38.10 within the area subject to the plan, and so long as: 38.11 (i) in a 50 to 80 percent area, a minimum acreage 38.12 requirement of one acre of replaced wetland for each acre of 38.13 drained or filled wetland requiring replacement is met within 38.14 the area subject to the plan; and 38.15 (ii) in a less than 50 percent area, a minimum acreage 38.16 requirement of two acres of replaced wetland for each acre of 38.17 drained or filled wetland requiring replacement is met within 38.18 the area subject to the plan, except that replacement for the 38.19 amount above a 1:1 ratio can be accomplished as described in 38.20 subdivision 12; 38.21 (4) in a greater than 80 percent area, allow replacement 38.22 credit, based on the classification and criteria set forth in 38.23 the plan, for any project that increases the public value of 38.24 wetlands, including activities on adjacent upland acres; and 38.25 (5) in a greater than 80 percent area, based on the 38.26 classification and criteria set forth in the plan, expand the 38.27 application of the exemptions in section 103G.2241, subdivision 38.28 1, paragraph (a), clause (4), to also include nonagricultural 38.29 land, provided there is no net loss of wetland values. 38.30 Subd. 3. [BOARD REVIEW AND APPROVAL; MEDIATION; JUDICIAL 38.31 REVIEW.] (a) The plan is deemed approved 60 days after the local 38.32 government submits the final plan to the board, unless the board 38.33 disagrees with the plan as provided in paragraph (d). 38.34 (b) The board may not disapprove a plan if the board 38.35 determines the plan meets the requirements of this section. 38.36 (c) In its review of a plan, the board shall advise the 39.1 local government unit of those elements of the plan that are 39.2 more restrictive than state law and rules for purposes of 39.3 section 103G.237, subdivision 5. 39.4 (d) If the board disagrees with the plan or any elements of 39.5 the plan, the board shall, in writing, notify the local 39.6 government of the plan deficiencies and suggested changes. The 39.7 board shall include in the response to the local government the 39.8 scientific justification, if applicable, for the board's 39.9 concerns with the plan. Upon receipt of the board's concerns 39.10 with the plan, the local government has 60 days to revise the 39.11 plan and resubmit the plan to the board for reconsideration, or 39.12 the local government may request a hearing before the board. 39.13 The board shall hold a hearing within the boundaries of the 39.14 jurisdiction of the local government within 60 days of the 39.15 request for hearing. After the hearing, the board shall, within 39.16 60 days, prepare a report of its decision and inform the local 39.17 government. 39.18 (e) If, after the hearing, the board and local government 39.19 disagree on the plan, the board shall, within 60 days, initiate 39.20 mediation through a neutral party. If the board and local 39.21 government unit agree in writing not to use mediation or the 39.22 mediation does not result in a resolution of the differences 39.23 between the parties, then the board may commence a declaratory 39.24 judgment action in the district court of the county where the 39.25 local government unit is located. If the board does not 39.26 commence a declaratory judgment action within the applicable 39.27 60-day period, the plan is deemed approved. 39.28 (f) The declaratory judgment action must be commenced 39.29 within 60 days after the date of the written agreement not to 39.30 use mediation or 60 days after conclusion of the mediation. If 39.31 the board commences a declaratory judgment action, the district 39.32 court shall review the board's record of decision and the record 39.33 of decision of the local government unit. The district court 39.34 shall affirm the plan if it meets the requirements of this 39.35 subdivision. 39.36 Subd. 4. [EFFECTIVE DATE; REPLACEMENT DECISIONS.] (a) The 40.1 plan becomes effective as provided in subdivision 3, paragraphs 40.2 (d) to (f), and after adoption of the plan into the official 40.3 controls of the local government. 40.4 (b) After the effective date of a plan, a local government 40.5 unit shall make replacement decisions consistent with the plan. 40.6 Subd. 5. [PLAN AMENDMENTS.] Amendments to the plan become 40.7 effective upon completion of the same process required for the 40.8 original plan. 40.9 Subd. 6. [WATER PLANNING PROCESSES APPLY.] Except as 40.10 otherwise provided for in this section, all other requirements 40.11 relating to development of the plan must be consistent with the 40.12 water plan processes under sections 103B.231 and 103B.311. 40.13 Sec. 34. [103G.2244] [WETLAND CREATION OR RESTORATION 40.14 WITHIN PIPELINE EASEMENT.] 40.15 A person proposing to create or restore a wetland within 40.16 the easement of a pipeline as defined in section 299J.02, 40.17 subdivision 11, shall first notify the easement holder and the 40.18 director of the office of pipeline safety in writing. The 40.19 person may not create or restore the wetland if, within 90 days 40.20 after receiving the required notice, the easement holder or the 40.21 director of the office of pipeline safety provides to the person 40.22 a written notice of objection that includes the reasons for the 40.23 objection. 40.24 Sec. 35. Minnesota Statutes 1994, section 103G.237, 40.25 subdivision 4, is amended to read: 40.26 Subd. 4. [COMPENSATION.] (a) The board shall award 40.27 compensation in an amount equal to the greater of: 40.28 (1) 50 percent of the value of the wetland, calculated by 40.29 multiplying the acreage of the wetland by the greater of: 40.30 (1)(i) the average equalized estimated market value of 40.31 agricultural property in the township as established by the 40.32 commissioner of revenue at the time application for compensation 40.33 is made; or 40.34 (2)(ii) the assessed value per acre of the parcel 40.35 containing the wetland, based on the assessed value of the 40.36 parcel as stated on the most recent tax statement; or 41.1 (2) $200 per acre of wetland subject to the replacement 41.2 plan, increased or decreased by the percentage change of the 41.3 assessed valuation of land in the township where the wetland is 41.4 located from the 1995 valuation. 41.5 (b) A person who receives compensation under paragraph (a) 41.6 shall convey to the board a permanent conservation easement as 41.7 described in section 103F.515, subdivision 4. An easement 41.8 conveyed under this paragraph is subject to correction and 41.9 enforcement under section 103F.515, subdivisions 8 and 9. 41.10 Sec. 36. Minnesota Statutes 1994, section 103G.237, is 41.11 amended by adding a subdivision to read: 41.12 Subd. 5. [COMPENSATION CLAIMS AGAINST LOCAL GOVERNMENT 41.13 UNITS.] (a) At the request of a local government unit against 41.14 which a compensation action is brought based at least in part on 41.15 the local government unit's application of section 103G.222, 41.16 103G.2241, 103G.2242, 103G.2243, 103G.237, or 103G.2372, or 41.17 rules adopted by the board to implement these sections, the 41.18 state, through the attorney general, shall intervene in the 41.19 action on behalf of the local government unit and shall 41.20 thereafter be considered a defendant in the action. A local 41.21 government unit making a request under this paragraph shall 41.22 provide the attorney general with a copy of the complaint as 41.23 soon as possible after being served. If requested by the 41.24 attorney general, the court shall grant additional time to file 41.25 an answer equal to the time between service of the complaint on 41.26 the local government unit and receipt of the complaint by the 41.27 attorney general. 41.28 (b) The state is liable for costs, damages, fees, and 41.29 compensation awarded in the action based on the local government 41.30 unit's adoption or implementation of standards that are required 41.31 by state law, as determined by the court. The local government 41.32 unit is liable for costs, damages, fees, and compensation 41.33 awarded in the action based on local standards that are more 41.34 restrictive than state law and rules. 41.35 (c) For the purposes of this subdivision, "compensation 41.36 action" means an action in which the plaintiff seeks 42.1 compensation for a taking of private property under the state or 42.2 federal constitution. 42.3 Sec. 37. Minnesota Statutes 1994, section 103G.2373, is 42.4 amended to read: 42.5 103G.2373 [ANNUAL WETLANDS REPORT.] 42.6 By JanuaryMarch 1 of each year, the commissioner of 42.7 natural resources and the board of water and soil resources 42.8 shall jointly report to the committees of the legislature with 42.9 jurisdiction over matters relating to agriculture, the 42.10 environment, and natural resources on: 42.11 (1) the status of implementation of state laws and programs 42.12 relating to wetlands; 42.13 (2) the quantity, quality, acreage, types, and public value 42.14 of wetlands in the state; and 42.15 (3) changes in the items in clause (2). 42.16 Sec. 38. Minnesota Statutes 1994, section 115.03, is 42.17 amended by adding a subdivision to read: 42.18 Subd. 4a. [SECTION 401 CERTIFICATIONS.] (a) The following 42.19 definitions apply to this subdivision: 42.20 (1) "section 401 certification" means a water quality 42.21 certification required under section 401 of the federal Clean 42.22 Water Act, United States Code, title 33, section 1341; and 42.23 (2) "nationwide permit" means a nationwide general permit 42.24 issued by the United States Army Corps of Engineers and listed 42.25 in Code of Federal Regulations, title 40, part 330, appendix A. 42.26 (b) The agency is responsible for providing section 401 42.27 certifications for nationwide permits. 42.28 (c) Before making a final decision on a section 401 42.29 certification for regional conditions on a nationwide permit, 42.30 the agency shall hold at least one public meeting outside the 42.31 seven-county metropolitan area. 42.32 (d) In addition to other notice required by law, the agency 42.33 shall provide written notice of a meeting at which the agency 42.34 will be considering a section 401 certification for regional 42.35 conditions on a nationwide permit at least 21 days before the 42.36 date of the meeting to the members of the senate and house of 43.1 representatives environment and natural resources committees, 43.2 the senate agriculture and rural development committee, and the 43.3 house of representatives agriculture committee. 43.4 Sec. 39. [RULES.] 43.5 Within 60 days of the effective date of this section, the 43.6 board, in consultation with the commissioners of natural 43.7 resources and agriculture, shall adopt rules that amend the 43.8 rules previously adopted under Minnesota Statutes, sections 43.9 103G.2242, subdivision 1, and 103B.3355. These rules are exempt 43.10 from the rulemaking provisions of Minnesota Statutes, chapter 43.11 14, except that Minnesota Statutes, section 14.386, applies and 43.12 the proposed rules must be submitted to the senate and house 43.13 environment and natural resource committees at least 30 days 43.14 prior to being published in the State Register. The amended 43.15 rules are effective for two years from the date of publication 43.16 of the rules in the State Register unless they are superseded by 43.17 permanent rules. 43.18 Sec. 40. [WETLAND BANKING STUDY; REPORT.] 43.19 The commissioner of natural resources, in consultation with 43.20 the board of water and soil resources and the commissioner of 43.21 agriculture, shall ensure that the wetlands conservation 43.22 planning process currently under way includes a study of 43.23 alternative procedures and policies for improving the current 43.24 wetland banking system in the state. The study and any 43.25 resulting recommendations must be reported to the appropriate 43.26 policy committees of the legislature by June 30, 1997, or upon 43.27 completion of the wetlands conservation planning final report, 43.28 whichever is later. 43.29 Sec. 41. [LINCOLN-PIPESTONE CALCAREOUS FEN.] 43.30 The fen management plan prepared pursuant to Minnesota 43.31 Statutes, section 103G.223 for sections 5, 6, 8, and 17 of 43.32 T114N, R46W, and the Burr Well Field must be jointly developed 43.33 by the commissioner of natural resources and the 43.34 Lincoln-Pipestone rural water district. A fen management plan 43.35 is not required to appropriate within the existing permitted 43.36 pumping rate of 750 gallons per minute or permitted volume of up 44.1 to 400,000,000 gallons per year. 44.2 Sec. 42. [APPROPRIATION.] 44.3 (a) $130,000 is appropriated from the general fund to the 44.4 board of water and soil resources for providing assistance to 44.5 local governmental units in developing and implementing 44.6 comprehensive wetland protection and management plans under 44.7 Minnesota Statutes, section 103G.2243. 44.8 (b) $120,000 is appropriated from the general fund to the 44.9 board of water and soil resources for grants to local 44.10 governmental units for developing and implementing comprehensive 44.11 wetland protection and management plans under Minnesota 44.12 Statutes, section 103G.2243. 44.13 (c) $100,000 is appropriated from the general fund to the 44.14 board of water and soil resources for grants to local government 44.15 units to develop public ditch inventories, including maps and 44.16 histories of public ditch systems. 44.17 (d) $50,000 is appropriated from the general fund to the 44.18 board of water and soil resources for a grant to the association 44.19 of Minnesota counties to conduct workshops for public drainage 44.20 authorities. 44.21 Sec. 43. [INSTRUCTION TO REVISOR.] 44.22 The revisor of statutes shall renumber Minnesota Statutes, 44.23 section 103G.005, subdivision 18, as section 103G.005, 44.24 subdivision 15a. 44.25 Sec. 44. [REPEALER.] 44.26 Minnesota Statutes 1994, section 103G.2242, subdivision 13, 44.27 is repealed. 44.28 Sec. 45. [EFFECTIVE DATE.] 44.29 This act is effective the day following final enactment, 44.30 except that section 24, subdivision 1, paragraph (e), does not 44.31 apply to replacement completed using wetland banking credits 44.32 established by a person who submitted a complete wetland banking 44.33 application to a local government unit by April 1, 1996.